FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of...

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FOI Information FOI Information Managers’ Course Managers’ Course Session 1 Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands

Transcript of FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of...

Page 1: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

FOI Information FOI Information Managers’ CourseManagers’ Course

Session 1Session 1

Freedom of Information Unit&

Civil Service College of the Cayman Islands

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Session 1Session 1This session provides a brief overview of the access provisions of the FOI Law.

• Philosophy, background and international aspects• An overview of the Freedom of Information Law, its scope, structure and core provisions.• Processing Requests • How to identify requests and respond to requests• Dealing with the deadlines  • Handling requests which may be vexatious or involve a lot of resources • Charging fees

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Philosophy behind the LawPhilosophy behind the Law

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Philosophy - Freedom of Philosophy - Freedom of InformationInformation

There are democratic principles underlying the FOI Law.

These principles should influence an IM’s approach in making decisions on providing access to government information.

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Philosophy - Freedom of Philosophy - Freedom of InformationInformation

FOI is essential for modern government.

A more open government a more accountable government.

More informed citizensgreater public participation in policy making.

People understand how government

decisions are made greater trust in Government

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Philosophy - Freedom of Philosophy - Freedom of InformationInformation

The public has the right – to see and hear what is going on in the

government, legislature, courts.– to have access to information that the

government holds – including their own personal information.

The media has a right to information.

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SECRETPUBLIC

SERVICE

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What do people have a right What do people have a right to?to?

Information about:– events that took place that may reveal

corruption – information about a past government – historical information that shaped a nation – information relevant to their social,political

and human rights housing clean environment health care fair working conditions etc

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Case StudiesCase Studies

“ Inequality of access to information is a form of poverty”

Amartya Sen, Noble Peace Prize Economist

Thai School Nuclear Accident reports Food safety

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Thailand: School Admissions

Documents released under the Official Information Act revealed that students with below-standard scores were admitted.

The school admitted that certain students were admitted because their families were well-connected or made generous donations. This process was later deemed unconstitutional.

A girl was refused entrance to a prestigious government school. Her mother requested the test scores of successful applicants.

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UK: Nuclear Reactor Accident Records

After a reactor accident at Torness in 2002, the Nuclear Installations Inspectorate (NII) criticised managers at the plant for “ignorance,” failing to give safety a high priority, and providing “inaccurate or inconsistent” reports to NII.The accident shut down one reactor for six months, and cost British Energy 25 million pounds. Until the report was released under FOI, the public had been told only of minor “vibration problems.”

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Canada: Food Safety

Of samples analysed by the British Columbia Centre for Disease Control in 2002, 80% of raw food and 30% of cooked food exceeded bacterial health guidelinesDetails were provided to a reporter from the Vancouver Sun as a result of an FOI request

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Objects of the Law (s.4)Objects of the Law (s.4)“The objects of this Law are to

reinforce and give further effect to certain fundamental principles underlying the system of constitutional democracy,(a) governmental accountability;(b) transparency; and(c) public participation in national decision-making,by granting to the public a general right of access to records held by public authorities”

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FOI requires a cultural FOI requires a cultural changechange

Information Managers must keep in mind the objects of the Law when responding to FOI requests.

Developing a culture of openness can be difficult. Officials must learn to change their mindset to recognise that :-– the information that they hold is owned by

the public; and – citizens have a right to obtain information.

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Secrecy OpennessCulture Change

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International ContextInternational Context

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International ContextInternational Context

Freedom of Information has been recognised for nearly 250 years.

In 1789, the French Declaration of Rights of Man called for the right of citizens to review expenditures of the government.

“Society has the right to require of every public agent an account of his administration”

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FOI Laws Internationally

1766: Sweden 1951: Finland 1966: USA 1970: Denmark 1978: France 1980:

Netherlands

1982: Canada, New Zealand, Australia,

1998: Ireland 2002: Poland 2005: United

Kingdom 2006: Germany

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International ContextInternational Context More than 75 countries now have guaranteed

their citizens the right to know. In some countries the laws are dormant and

in others are actively used. Caribbean:

– Cayman Islands 2007– Antigua & Barbuda 2004 – Jamaica 2002 – Trinidad & Tobago 1999 – Belize 1994

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International ContextInternational Context

Common features of most laws are:1. Right to Information/Documents/Records

(a Human Right)

UN General Assembly Resolution 59(1):“Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the United Nations is consecrated.”

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International ContextInternational Context2. The right of access is subject to a

limited number of exemptions - access is refused if disclosure would cause a specified harm

3. “Public interest tests” where the public interests in withholding of information must be balanced against disclosure in the public interest.

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International ContextInternational Context4. A right of appeal to an impartial

arbiter who – decides whether the exemption applies to

particular information, – has the power to rule that the information

must be disclosed.

5. A duty on government agencies to routinely release certain categories of information (Publication Schemes)

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International Context - UKInternational Context - UKFreedom of Information Act began in

England on January 1, 2005. 4,000 requests were received in 1

month.

Agencies receiving the most requests:-the National Archivesthe Ministry of Defence Foreign and Commonwealth Office

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International Context - JamaicaInternational Context - Jamaica

Agencies receiving the most requests:– the Ministry of Finance, the Child Development

Agency and Environmental Agency. Requests include:-

– Cost of the stay of President Aristide– The number of cases concerning persons being

beaten by police officers while in custody – The contract for the renovations of the Governor of

the Bank of Jamaica’s house– The ratio of nurses to doctors at a hospital in

Montego Bay– The basis for the grant of a duty concession to a

popular entertainer

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Origins and Background to Origins and Background to the Cayman Islands the Cayman Islands

Freedom of Information LawFreedom of Information Law

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Origins and Background to Origins and Background to the Freedom of the Freedom of Information LawInformation Law

The common law gave a discretionary right to Government to decide what documents or information should be released, regarded as a type of proprietary right.

A proposal to adopt a Freedom of Information (FOI) Law was first tabled as a private members’ motion in the Legislative Assembly by Mr. Roy Bodden & Mr. D. Kurt Tibbetts on the 26th of June 1998. (No. 12 Hansard 1998 Session)

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Origins and Background to the Origins and Background to the LawLaw

The Law was proposed as a mechanism to promote good governance reforms with the need to show high levels of transparency and accountability in Government.

Open Government Committee

VISION 2008 “Open Government” Committee Meeting held in 1998 – Civil Society recommendations received on Bill

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Origins and BackgroundOrigins and Background

A Freedom of Information Bill was prepared by the Attorney-General’s Chambers and presented to the Legislative Assembly in late 2005.

The Bill was a result of research on – New Zealand Official Information Act 1982,– Jamaican Access to Information Act 2002, – UK Freedom of Information Act 2000, and – Florida “Government-in-the-Sunshine” law.

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Background of FOI LawBackground of FOI Law

Comments were received from numerous civil society groups in Cayman.

The FOI Law– Was passed into law by the LA on August 31st 2007– Was assented to by the Governor on October 19th

2007– Was brought into effect on 5th January 2009

FOI Regulations were passed in 2008

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Scope & Structure of the LawScope & Structure of the Law

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The Law – Structure The Law – Structure Establishes statutory right to

information Sets out exceptions to that right Provides for the release of exempt

information in the public interest Exemptions vs. Exclusions Includes right of appeal for decision

to refuse access Establishes the office of the

Information Commissioner

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The Law – Structure The Law – Structure Came into effect for all public authorities

in January 2009 Requires public authorities to produce

publication schemes Requires designation of Information

Managers Does not amend or override pre-existing

legislation FOI Unit and Legal Committee of the

FOISC is reviewing other laws which restrict access

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The Law -Structure The Law -Structure Protection of Whistleblowers (s.50)

– against legal, administrative or employment related sanctions

– where release of information on wrong doing or that discloses a serious threat to health, safety or the environment

– as long as done in good faith

Requires public authorities to make “best efforts” to ensure decisions and the reasons for those decisions are made public. (s.27)

Page 36: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Scope- Who does the law apply Scope- Who does the law apply to?to?

The Law is applicable to “public authorities”

“Public Authority” is defined as:– government ministries– portfolios – departments – statutory bodies or authorities, whether

or not incorporated – government companies in which the

government owns a majority share

A list has been created of 88 public authorities, which CINA updates, maintains and publishes

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Scope - Who does the law apply Scope - Who does the law apply to ?to ?

The Law may be extended by Order to:-– government companies with a minority share– any body or organisation that carries out

services important to the welfare of the Caymanian Society

– organisations that receive government appropriations on a regular basis

The process for preparation of extension of the law will not begin until 2010

The Law will be reviewed 18 months after being brought into operation

Page 38: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Scope - What does the law Scope - What does the law not apply to?not apply to?

Records that may not be disclosed under s.50 of the Monetary Authority Law

Records relating to directors, officers and shareholders of companies exempted under the Company Law

Judicial functions of a court or holder of a judicial office (but administrative records fall within the law)

Page 39: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Scope - What does the law Scope - What does the law not apply to?not apply to?

Records relating to the strategic or intelligence gathering information of the police, special constabulary and customs

Records that are the property of the Government of the UK

Private holdings of the National Archive where there is a contract or other arrangement that restricts access under the FOI Law

Page 40: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Scope of the LawScope of the Law

Applies to all records created by Government regardless of date of creation (s.3)

Disclosure under the FOI Law is disclosure to the general public, except where a person requests their own personal information.

Any person can make a request - it is not limited to persons living in Cayman. A person includes a legal person, e.g a company

Page 41: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Information already Information already availableavailable

S.6 (4) Where a record is-– (a) open to access by the public

pursuant to any other enactment as part of a public register or otherwise; or

– (b) available for purchase by the public in accordance with administrative procedures established for that purpose,

access to that record shall be obtained in accordance with the provisions of that enactment or those procedures.

Page 42: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Awareness of LegislationAwareness of Legislation

Each IM needs to be aware of the legislation that governs the work of his/her public authority

This is especially important where legislation includes either provisions on the non-disclosure of records or provisions that include alternative forms of access.

The IM needs to reconcile different policies and procedures for access within their authority.

Advice can be sought from the FOI Unit.

Page 43: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

FOI as a Safety Net

FOI

Request for information

Publication Schemes (hard copy or available on

line)Policies, rules and

practices

Respond by phone, letter

Brochures, publications(free or for sale)

Access schemes under other legislation

Public registers

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Information Already Information Already AvailableAvailable

The existing systems for access to particular kinds of information will take priority even if not as convenient or cost effective for the applicant.

Where a public authority refuses based on this provision, it must – inform the applicant of the specific

location of the documentation and – provide a description of the records or

information in question.

Page 45: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Information Already AvailableInformation Already Available

This ground of refusal is intended to maintain existing publicly available sources of information

It is not intended to be used in order to avoid obligations under the Law.

Information must be published or available generally to members of the public or be for sale.

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ExamplesExamples

Information publicly available includes:– Land Titles – Company registration details– Annual reports– Development Plans– Published Statistics– Birth Certificates

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Workbook: Case 1:

Canadian National Railway Company v. Attorney General of Canada

[2002] F.C.J. No. 1283 (QL) (F.C.T.D.)

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Scope – “information held”Scope – “information held”

A record is defined broadly to mean information “held” in any form (s.2), i.e. in the possession, custody or control of an authority

This is to be assessed at the time the request is received

The focus is on "possession, custody or control" and not ownership.

Page 49: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Scope – “possession, Scope – “possession, custody or control”custody or control”

A document may be in the possession or physical

custody of an agency if:

it is in the actual possession of the agency; or

it is in the “control" of the authority, that is, the agency has a right to immediate possession or

a right and power to deal with the document, by restraint or direction.

Page 50: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Scope – “possession, Scope – “possession, custody or control”custody or control”

Control will depend on the facts in each case. It can be in a contract between a third party and the public authority e.g any documents generated by a consultant are the property of Government

This test relates to whether or not the record is one which falls within the scope of an agency’s decision-making process.

Page 51: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Right to Documents, Right to Documents, Dealing with Requests, Dealing with Requests,

Timelines, Timelines, Charging feesCharging fees

Page 52: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Dealing with requests: Dealing with requests: What do you need to What do you need to

know?know?

How to recognise a request for information The extent of your duty to provide advice

and assistance The forms of access that can be granted What the procedure is for dealing with

requests Who is responsible for this What is information provided in the normal

course of business

Page 53: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

A A RightRight to Records to Records

s.6 Every person shall have a right to obtain access to records other than an exempt record

A record that was previously exempt will no longer be exempt 20 years after its creation (longer periods apply in certain cases)

An applicant should not be asked to give a reason for his/her request

Page 54: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

What are records?What are records?

Page 55: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

““Record” includes Record” includes “information held in any form”“information held in any form”

Papers (handwritten or typed, loose or filed, draft or final), files, charts, notepads, post-it notes, diaries, maps, record cards, plans, drawings

Films, photographs, microfilm, microfiche X rays, CAT scans, MRI Audio and video tapes, CDs, DVDs Computer disks, hard drives, tapes, email

Page 56: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Requests for Requests for InformationInformation

The only requirements are that requests must:

– include a name– be in writing (cannot be made verbally)– give a return address (e-mail or postal)– describe the information that is requested– include the form of access preferred

Applicants do not need to:– give a real name (unless their own personal

information is being requested)– refer to the FOI Law– give reasons for the request– use the gazetted application form– specify exact file numbers requested

Page 57: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

No need to create recordNo need to create record

FOI does not require the creation of a document although it may require the collation of information.

Collation is defined as to gather or arrange in their proper sequence:– the pages of a report– the sheets of a book– the pages of several sets of copies– the copying of separate pieces of information

onto a CD which would in effect create a new record.

Page 58: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

““Reasonably necessary” to identify the Reasonably necessary” to identify the recordrecord

A request must give enough information as is reasonably necessary to enable the IM to identify the record

Precise identification or actual file or document numbers are not needed

If an application is ambiguous, uncertain, or unclear, it does not comply with the FOI Law s.7(2)(b) and is not a valid request.

Clarification of unclear requests as soon as practicable is important.

Page 59: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Provision of AssistanceProvision of Assistance

When does an IM have to provide assistance ? Upon request by the applicant s. 7(3)(a) Where the information provided by the

applicant does not enable identification of the record

What amounts to providing assistance as required by the law? Explain the key provisions of the Law Help the applicant to describe more clearly

what information they require

Page 60: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Provision of AssistanceProvision of AssistanceIndicate the documents the agency

holds that may be relevant to the subject: e.g catalogues and indexes, lists of file titles

Engage in helpful dialogue to try to understand what is being sought by an applicant

Assist them to be precise, as irrelevant matter cannot be deleted

Consultation by: telephone, oral discussions or email, letter, fax. If verbal, document the outcome.

Page 61: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

How should I interpret a request?How should I interpret a request?

An IM must • read the request carefully• not analyse it as though it were a

legal document• use the common (dictionary)

meaning of terms unless it is clear they have a technical meaning

• seek advice from relevant technical experts

Page 62: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Initial ChecksInitial ChecksIs the information already available?Is the request complete? Does the request need to be

expedited?Does this authority hold the records?Is this a vexatious or repeat request?Would complying unreasonably

divert resources?(See flowchart for detailed questions)

Page 63: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

What is a complete What is a complete request?request?

In writingName and full postal or email addressSufficient description of information

being soughtStates preferred form of accessIncludes ID (for personal requests)(May include request for expediting)If not complete, help the applicant…

Page 64: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Confidentiality of Applicant’s Confidentiality of Applicant’s InformationInformation

An Information Manager is required to keep information about the applicant confidential

The identity of the applicant should in general have no impact on how the request is responded to

Page 65: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

FOI Deadlines (summary)

• Acknowledge in 10 days• Transfer within 14 days• Decide in 30 calendar days• + extension: up to 30 calendar days if

• shortage of staff• records difficult to locate, or voluminous• third parties consulted• seek legal advice

Start counting from the day after valid request receivedNB: Clock stops when need to clarify.

Page 66: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Time limitsTime limitsThe Law obliges you to respond :-as soon as practicable; and in any event not later than 30

calendar days maximum after the date on which the request was received

“received” = delivered to anyone in your authority including by fax or e-mail

“calendar days” = include all weekends, holidays Start counting on the day after it is received = Day 1

Page 67: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Timelines for FOI RequestsTimelines for FOI Requests

Initial steps: – date stamp the request– open a registered file– add the request to the tracking system (JADE)– note upcoming deadlines– send to the Information Manager (within 2 days)

Acknowledge request by day 10 Transfer to another authority by day 14 Begin third party consultation by day 14 Decide on release by day 30 (unless extension) Record major steps in the IT tracking system

Page 68: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

AcknowledgementAcknowledgement A public authority must acknowledge receipt

of a request in writing within 10 calendar days

– first ensure that it is a valid request, and that it is clear what the applicant is seeking

The acknowledgement letter should refer to the date on which the valid request was received

– so that both the applicant and your agency are clear on the time limit to notify a decision

Page 69: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

TransfersTransfers

An application can be transferred when:-

The record is held by another public authority OR

The subject matter is more closely connected with the functions of another public authority

The other public body agrees to the transfer

Page 70: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

TransfersTransfers If you decide to transfer the request to

another public authority you must get confirmation from the other body that it holds the information

The transfer must take then place as soon as is practicable but no later than 14 calendar days.

The transfer must be noted on your tracking log.

Advise applicant within 10 calendar days that their request has been transferred.

Page 71: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

TransfersTransfers

When transferring a request the Information Manager should:-– Forward a copy of the request to the IM of

the other public authority– Advise the date of receipt of the request– Advise the applicant of the transfer– For a partial transfer, advise of the part of

the request retained

Page 72: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

TransfersTransfers The FOI Law does not provide a procedure

for resolution of disputes between public authorities as to transfers.

If an authority will not accept a transfer, the legal responsibility stays with the agency to whom the request was made. This decision should be communicated to the applicant.

NB:- Where a document may be a Cabinet document it is essential to consult the FOI Cabinet Information Manager on this request.

Page 73: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

TimelinesTimelines

If a transfer is made to another public authority, the public authority receiving the transferred application must make a determination within 30 calendar days of receiving the transfer.

Information Managers may use the IM Network to assist in working out which public authority holds information

Page 74: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Tracking TimelinesTracking Timelines

Maximum total time to make decision:

if no transfer: 30 calendar days

if extension is requested: 60 calendar days

if transferred once/no extension: 14 + 30 = 44 calendar days

if transferred once / + extension: 14 + 30 + 30 = 74 calendar days

Page 75: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Vexatious requests and Vexatious requests and substantially similar requestssubstantially similar requests

This section has been included because some individuals may try to abuse FOI rights

A public authority does not have to comply with a request – if it is vexatious (s.9(a))– if it has recently complied with a substantially

similar request from the same person (s.9(b))

Page 76: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Vexatious RequestsVexatious Requests “Vexatious”: Not defined in FOI Law Dictionary definition :-

– causing vexation; troublesome; annoying Irritation or nuisance caused by the

applicant is not sufficient Vexatious: where it has the effect of

harassing the public authority or is obsessive

Context and history are important e.g. language, the volume of correspondence, re-opening of closed issues etc

This ground of refusal should be used sparingly

Page 77: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Diversion of ResourcesDiversion of Resources A balance must be struck between providing

access to information and the resources which must be employed to provide access.

It must be recognised that processing FOI requests is a legal obligation for each public authority and not an “add on”

This basis for refusal is only allowed where it is an unreasonable diversion of resources

Page 78: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Diversion of ResourcesDiversion of Resources Whether a request is an unreasonable

diversion of resources depends on the facts of each case and cannot be arbitrarily determined.

The FOI Regulations require the IM to send a notice to an applicant inviting them to consult to narrow the request before this decision.

This “stops the clock,” i.e. suspends the

30 calendar day period until the request is sufficiently narrowed.

Page 79: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

How do I determine whether processing a How do I determine whether processing a request would be an unreasonable request would be an unreasonable

diversion of resources?diversion of resources?

There are two steps involved:

1. The IM needs to estimate the resources required

by your agency to process the request.

2. The IM needs to estimate the effect thatprocessing the request would have on those resources, i.e., would there be an "unreasonable“diversion of the resources from the agency's

otheroperations?

Page 80: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

What Resources?What Resources?The resources are those which wouldhave to be used in: identifying, locating or collating the

documents within the agency's filing systems

examining documents deciding whether to grant, refuse or defer

access consulting with any person or body making copies, including

editing copies notifying the applicant

Page 81: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

When would processing the request When would processing the request be an "unreasonable" diversion of be an "unreasonable" diversion of

resources?resources?Factors to consider include:

– the nature and size of the agency; – the number, type and volume of

documents falling within the request (this can be estimated by representative sampling);

– the skills required to do the work– the time required to process the requestThis requires the balancing of relevant considerations and is a management

decision

Page 82: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

To estimate work To estimate work involved:involved:

How many records need to be searched? Will this require overtime or movement of

staff from other tasks? How complex is the subject–matter of the

records? Does it need expert input to assess?

How much consultation will be required? How much work will be involved in making

copies or edited copies of the documents? Will addressing the request affect the

capacity of the agency to carry out its other functions?

Page 83: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Diversion of ResourcesDiversion of Resources

The IM should: give a written notice of the determination state their intention to refuse access (NOT

that a decision has been made to do so) invite the applicant to consult with a view

to amending the request to remove the ground for refusal (this stops the clock until it is resolved)

assist the applicant with suggestions to reduce the work involved

Page 84: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

What if the applicant does not What if the applicant does not sufficiently narrow the request?sufficiently narrow the request?

After a reasonable opportunity to consult hasbeen provided, you can refuse the request: if the applicant does not participate in

the narrowing process or does not sufficiently narrow the request

Grounds: that to process the request would unreasonably divert the resources of the

public authority (s.9(c))

Page 85: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Reasonable searchReasonable search

taking all reasonable steps to identify all relevant records in the possession of the agency, including in registries and individual filing cabinets and desks

keeping an audit trail of which officers were involved in the search, when and where they searched

This will assist if the applicant complains about the missing documents in an appeal

Record missing files within a file plan

An agency is obliged to conduct a thorough and diligent search for records

Page 86: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

No Record ExistsNo Record Exists

Generally, where an authority claims that no records exist which are responsive to a request, the issue is:-

if the authority's search for the records was adequate or

was the document destroyed lawfully or

was the file lost some time ago and not hidden as a result of the request.

Page 87: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Destruction of a RecordDestruction of a Record

Public officials should not destroy any records without approval

Under the National Archives and Public Records Law records must only be destroyed subject to an authorised disposal schedule.

Page 88: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Destruction of a recordDestruction of a record

The National Archives and Public Records Law defines a record as: information in any form created, received or

maintained as evidence of a transaction or activity undertaken in the conduct of its business

Something which is not a record may include – Non work related information– duplicates and reference copies – Published information

Page 89: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Making the DecisionMaking the Decision

The Information Manager must:– Consider whether the records coming within the

scope of the request contain third party information.

– Determine if an extension is required– Check each page for exempt material– Consider any relevant public interest factors – Determine if redaction is required– Make a decision whether the request should be

granted, refused or deferred– Prepare a schedule of records

Page 90: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Once a tentative decision has been Once a tentative decision has been made…made…

Does any of the material proposed to be released concern third parties? If so, advise them and delay access until they have had a chance to object and/or appeal

If partial access is to be granted, make notes on records to be redacted (keep in request file)

Can optionally extend if more than 30 days is required to make the decision

Determine mode of access and associated costs

Prepare a decision letter and send it to the applicant

Page 91: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

DecisionDecision Inform the applicant within 30 calendar

days of receipt of the application – whether or not the information will be

granted refused or deferred

– or the period extended – inform the applicant of reasons for this

and rights of appeal.

In Session 3 you will practice writing decision letters

Page 92: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

The Giving of ReasonsThe Giving of Reasons

A well-written decision should: be easily readable; interest the reader; state the issues at the outset; resolve the issues with the

minimum of detail; and indicate the final decision

Page 93: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

More content for a letter of More content for a letter of refusalrefusal

The Information Manager must write a letter advising the applicant of : – findings of any material issues relevant to the

decision – particulars of any matter taken into

consideration – particulars of rights of review and appeal, the

procedure governing the exercise of those rights and the time limits governing such exercise

The FOI Guidance Manual will assist in making the relevant decision

Page 94: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Deferral of AccessDeferral of AccessAccess to documents may be deferred where arecord was prepared:- for presentation to the Legislative Assembly; for the purpose of being available to a

particular person or body ; for publication of a record within a particular

period as required under an enactment ; if the premature release would be contrary to

the public interest until the occurrence of an event after which it would no longer contrary to the public interest

Page 95: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Deferral of AccessDeferral of Access

In those circumstances, the statement of reasons for the decision must indicate as far as practicable how long access will be deferred

This period must be communicated to the applicant within 14 calendar days of the decision

Page 96: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Forms of AccessForms of Access

Inspection Copy Hear sounds or view images Shorthand or sound and images – creation of a

transcript

Where an applicant requests that access be given ina particular form access should be given in that

form There are 2 exceptions to this rule

Page 97: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Form of Access - Form of Access - ExceptionsExceptions

Access may be given in an alternative form where the grant of access would:

Be detrimental to the preservation of the record

Constitute an infringement of intellectual property rights in the record

Page 98: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

AuthenticationAuthenticationRecords should be authenticated

before release to the public, in accordance with requirements from the Attorney General– Authentication of documents is only done

at the request of the applicant– It is to be completed through use of a

standard ink stamp that states “certified a true copy of the original” with a place for the date and signature of the IM, and a stamp or seal for the public authority

Page 99: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Fees

• The FOI (General) Regulations outline the fees to be charged for:– reproduction– changing a record into an alternative format– delivery of the record to the applicant.

• Before preparing copies, send applicant a letter with estimate of the total fee.

• If no fees are paid within 30 days of the estimate, the request is to be considered withdrawn if there has been no request made for an extension of this period.

Page 100: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Fees• The reproduced record must be

prepared as soon as practicable but not later than 14 calendar days after the fee is received from the applicant.

• Fees may be waived by the Chief Officer or Principal Officer of a public authority in appropriate circumstances, e.g. financial hardship.

• The public authority must determine how to accept fees, e.g cash, cheque, credit card, etc.

Page 101: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Sample Fees (from Schedule)

The Schedule to the FOI Regulations sets out the fees to be charged to the applicant

The Information Manager may also charge for the cost of postage / courier / shipping

Page 102: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.
Page 103: FOI Information Managers’ Course Session 1 Freedom of Information Unit & Civil Service College of the Cayman Islands.

Forms and ResponsesForms and Responses

Information Managers are encouraged to use the forms provided in the FOI Guidance Manual and automatically produced by JADE when corresponding with applicants.

Additional information may be added to the forms depending on each particular case.